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Following this decision by the Full Federal Court, plaintiffs will seemingly no longer be able, merely by showing that a fee was higher than a supplier’s costs in a particular case, or that a financial institution or other supplier had overwhelming bargaining power, have the supplier’s charges set aside as an unlawful penalty. The decision has restored freedom of contract as a fundamental principle underpinning our systems of law and commerce. While an appeal to the High Court is likely, contracting parties can, in the meantime, once again negotiate damages clauses with greater certainty.

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